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BRITTINGHAM v. WEINBERGER

February 11, 1976

MATTIE B. BRITTINGHAM
v.
CASPER WEINBERGER, Secretary of Department of Health, Education and Welfare



The opinion of the court was delivered by: BECHTLE

BECHTLE, J.

 Before the Court are cross-motions for summary judgment filed by the parties to this action. Plaintiff brought suit to obtain judicial review of a final decision of the Secretary of Health, Education and Welfare ("Secretary") which denied her disability benefits under the Social Security Act, 42 U.S.C. § 301 et seq. This Court's power to affirm, modify, reverse or remand the decision of the Secretary arises from § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

 Plaintiff was born in June of 1926 (Tr. 24) and completed the sixth grade of school (Tr. 27). She was employed as a domestic for approximately sixteen years, performing general household chores and caring for three children. (Tr. 29-30.) Beginning in November of 1967, plaintiff was employed as a meat cook in a cafeteria. This job involved preparing food for over 600 people daily and required her to lift containers of food weighing up to thirty pounds at a time. (Tr. 28-29.) Plaintiff left this job in April of 1972 due to pain in her back and left leg and was admitted to a hospital for a period of ten days. (Tr. 62, 63, 85.) The diagnosis at the time of her discharge from the hospital was that she was suffering from severe lumbosacral strain. (Tr. 85.) Plaintiff received follow-up care on an outpatient basis from an osteopath who considered her capable of returning to full activity as of August 25, 1972. (Tr. 86.) With the exception of two brief attempts to resume work, neither of which lasted for more than two weeks, plaintiff did not work between April of 1972 and September 26, 1973, the date of the evidentiary hearing on her disability claim. Both attempts to return to work were unsuccessful due to the recurrence of her physical disorders. (Tr. 31, 76.)

 Plaintiff filed an application for disability insurance benefits on November 14, 1972, claiming that a pinched nerve, a ruptured disc and arthritis had prevented her from working since April 22, 1972, and continued to do so at the time of filing. Plaintiff's claim was disallowed on January 9, 1973, and a reconsideration determination dated April 16, 1973, was also negative. Subsequently, the above-mentioned evidentiary hearing was held before an Administrative Law Judge pursuant to 42 U.S.C. § 405(b).

 At the hearing, plaintiff testified that she suffered from pain and related problems in her limbs and back. One of the exhibits admitted into evidence was the report of a March 20, 1973, examination of plaintiff performed by Dr. Stephan A. Christedes, an orthopedic surgeon, at the request of the Pennsylvania Bureau of Vocational Rehabilitation, acting for the Social Security Administration. Dr. Christedes reported that plaintiff's problems were obesity, mild osteoarthrosis of the lumbar spine producing diffuse tenderness and a psychogenic overlay. (Tr. 96-98.) The Administrative Law Judge found that plaintiff did have a mild impairment of the lumbar spine and a certain degree of pain resulting from that impairment. However, the original refusal to grant plaintiff a period of disability or disability insurance benefits was affirmed by the Administrative Law Judge on November 12, 1973. By letter dated February 15, 1974, the Appeals Council informed plaintiff that its review of the Administrative Law Judge's decision revealed no error and that, accordingly, that decision would stand as the final decision of the Secretary. A timely complaint was thereafter filed with this Court, pursuant to 42 U.S.C. § 405(g). Plaintiff was not represented by counsel at any time prior to the filing of this complaint.

 The Secretary's position is that his findings of fact are supported by substantial evidence and must, therefore, be affirmed. Plaintiff's cross-motion for summary judgment seeks reversal of the Secretary's decision on three grounds: (1) that plaintiff was not adequately notified of her right to counsel and was severely prejudiced at the evidentiary hearing by her lack of counsel; (2) that the Administrative Law Judge failed to adequately consider plaintiff's subjective complaints of pain and disability; and (3) that the Secretary did not sustain his burden of proof that there exists substantial gainful activity which plaintiff can perform. We will consider each of plaintiff's arguments separately.

 We note preliminarily that the fact that plaintiff was not represented at the hearing is not, in and of itself, ground for remand. Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 840 n.4 (3d Cir. 1974). There must be a showing of clear prejudice or unfairness at the agency level proceedings in order for the lack of counsel to constitute a sufficient cause for remand. Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir. 1969).

 In the present case, plaintiff received a form notice from the Social Security Administration concerning her scheduled hearing before the Administrative Law Judge. On the form, there is a clearly marked section explaining the right to be represented by counsel. On its face, we consider this form adequate notice of the right to have representation at the administrative hearing. Moreover, at the opening of plaintiff's hearing, the Administrative Law Judge, noting the absence of an attorney or other representative, properly reminded plaintiff of her right and determined that she was willing to proceed without a lawyer. *fn1" A remand due to lack of notice is clearly unwarranted based on this record. Kennedy v. Finch, 317 F. Supp. 7 (E.D.Pa. 1970).

 Plaintiff has also not made a showing of clear prejudice or unfairness flowing from the absence of counsel. Such prejudice or unfairness is not to be presumed simply because plaintiff has only six years of formal education, there being no indication of any mental impairment on the part of plaintiff. Mills v. Richardson, 339 F. Supp. 402 (W.D.Pa. 1972). Moreover, plaintiff was given a full opportunity to be heard and to present evidence. She has not asserted that there is any additional evidence of her disability which she failed to produce at the administrative level due to her lack of counsel. Nor does she suggest that she was unable to effectively cross-examine the vocational expert, the only other witness at the evidentiary hearing, without the assistance of counsel or that the absence of cross-examination was in any way prejudicial.

 While we do not believe that remand is called for on this issue, the brusque attitude of the Administrative Law Judge revealed in the transcript of the evidentiary hearing compels us to add some general comments here concerning those cases in which the disability benefits claimant is not represented by competent counsel. Hearings on disability claims are not adversary proceedings. Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975). Although the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the Social Security Act requires that a more tolerant standard be used in such administrative adjudications than would be applicable in a typical court proceeding. Hess v. Secretary of Health, Education and Welfare, supra, 497 F.2d at 840. This is particularly true where the claimant is unassisted by counsel. In such cases, a duty devolves upon the administrative law judge to, at a minimum, emphasize to the claimant the importance of providing all the relevant evidence. Id. at 840, 841; see Cutler v. Weinberger, supra at 1286; Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 43 (2d Cir. 1972). The administrative law judge is charged not just with determining the facts, but with developing them as well. Richardson v. Perales, 402 U.S. 389, 410, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Unrepresented claimants are frequently handicapped by a lack of experience with administrative or legal procedures and a lack of understanding of the substantive significance of particular evidence to their claim. Tolerance and patience should be afforded those who do not immediately grasp the meaning of exhibits or technical terms or do not know that it may be helpful to call witnesses in their behalf. It is clear that the Social Security Administration has the duty to insure that its actions are both fair and thorough. Rayborn v. Weinberger, 398 F. Supp. 1303, 1312 (N.D.Ind. 1975). While this duty requires the administrative law judge to maintain his or her objectivity, it also suggests an obligation on the part of the administrative law judge to assist an unrepresented claimant by explaining in a clear and non-hostile manner any questions which might arise concerning the procedures at the hearing or the way in which evidence of the claimant's disability might best be presented.

 A claimant's lack of counsel not only heightens the level of care with which the administrative law judge should organize the creation of the record, but also that with which a reviewing court should scrutinize it. Particularly where the claimant is unrepresented, the courts have a duty to make a searching investigation of the record in order to determine whether the Secretary's decision is supported by substantial evidence and whether it was made in accordance with the proper legal standards. Gold v. Secretary of Health, Education and Welfare, supra, 463 F.2d at 43.

 Plaintiff's second argument challenges the adequacy of the Administrative Law Judge's consideration of her subjective symptomatology. For the reasons stated below, we believe that the Secretary's decision was based upon the application of incorrect standards relating to the issue of subjective pain and, accordingly, that remand of plaintiff's case will be necessary. Tillman v. Weinberger, 398 F. Supp. 1124, 1130 (N.D. Ind. 1975); Generella v. Weinberger, 388 F. Supp. 1086 (E.D.Pa. 1974). When a decision of the Secretary is based upon the application of incorrect standards, remand is proper without consideration of whether substantial evidence supports the ruling. Ferran v. Flemming, 293 F.2d 568, 571 (5th Cir. 1961); Tillman v. Weinberger, supra at 1130.

 The Administrative Law Judge, citing 20 C.F.R. § 404.1501(c), *fn2" stated in his "Evaluation of the Evidence":

 
As is specifically applicable herein, this regulation requires that the validity of the claimant's allegation of inability to sit, stand, lift or walk for any period of time and his [ sic ] subjective symptoms of back pain and nervousness be conceded only insofar as the complaints ...

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